Fusion 360 Inc.

Trademark Trial and Appeal Board

Jul 29, 2020

88017333 (T.T.A.B. Jul. 29, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: July 29, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Fusion 360 Inc.
_____

Serial No. 88017333
_____

David N. Armstrong and Bret E. Field of Bozicevic, Field & Francis LLP
for Fusion 360 Inc.
Carl A. Konschak, Trademark Examining Attorney, Law Office 126,
Andrew Lawrence, Managing Attorney.
_____

Before Adlin, Heasley, and Coggins
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant, Fusion 360 Inc., seeks registration on the Principal Register of the
standard character mark LEGACY for “fertilizers; plant foods; chemicals for use in
agriculture, except fungicides, herbicides, insecticides and parasiticides” in
International Class 1.1

1 Application Serial No. 88017333 was filed on June 27, 2018, based on Applicant’s allegation
of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act. 15 U.S.C. § 1051(b).

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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered, identical standard character mark
LEGACY for “plant growth regulators for agricultural use” in International Class 1,2
and the separately owned registered and identical standard character mark LEGACY
for “insecticides” in International Class 5.3
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
I. Likelihood of Confusion
“The Lanham Act provides national protection of trademarks in order to secure to
the owner of the mark the goodwill of his business and to protect the ability of
consumers to distinguish among competing producers.” Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985). Consistent with this
purpose, Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d).
We base our determination of likelihood of confusion under Section 2(d) on an

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system
2 Registration No. 3506310, issued on the Principal Register on September 23, 2008; renewed.
3 Registration No. 5313226, issued on the Principal Register on October 17, 2017.
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analysis of all of the probative facts of record. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In making our
determination, we have considered each DuPont factor for which there is evidence or
argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed.
Cir. 2019). See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”)).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented in a particular case. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637
F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play
more or less weighty roles in any particular determination”). “In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods and services.” In re Chatam Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media Inc. v. Inventive
Software, LLC, 2019 USPQ2d 311355, *5 (TTAB 2019).
A. Comparison of the Marks

Under the first DuPont factor, we compare Applicant’s and Registrants’ marks in
their entireties, taking into account their appearance, sound, connotation and
commercial impression. DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
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73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may
be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB
2014)).
In this case, all the elements are similar, as the marks are identical: LEGACY.
This DuPont factor “weighs heavily in favor of a finding of likelihood of confusion.” In
re i.am.symbolic, llc, 116 USPQ2d 1406, 1412 (TTAB 2015), aff’d, 866 F.3d 1315, 123
USPQ2d 1744 (Fed. Cir. 2017).
Applicant argues, “As exemplified by the two Registrants’ marks, even identical
marks may coexist on the Registry so long as the goods or services in question are
sufficiently different to avoid a likelihood of confusion.”4 But the existence of
confusingly similar marks already on the Register will not aid an applicant in
registering yet another confusingly similar mark. AMF Inc. v. Am. Leisure Prods.,
Inc., 474 F.2d 1407, 177 USPQ 268, 269 (CCPA 1973); In re Morinaga Nyugyo
Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016). “It has been said many
times that each case must be decided on its own facts. See In re Nett Designs Inc., 236
F.3d 139, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).” In re Eagle Crest Inc., 96 USPQ2d
1227, 1229 (TTAB 2010). In this case, as the ensuing analysis demonstrates, the
goods in the subject Application are related to those identified in the Registrations.
B. Relatedness of the Goods and Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of

4 Applicant’s brief, 10 TTABVUE 15.
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the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion
Capital, 110 USPQ2d at 1161.
A proper comparison of the goods “considers whether ‘the consuming public may
perceive [the respective goods … of the parties] as related enough to cause confusion
about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d
747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
“Where identical marks are involved, as is the case here, the degree of similarity
between the goods and services that is required to support a finding of likelihood of
confusion declines.” In re Country Oven, Inc., 2019 USPQ2d 443903, * 5 (TTAB 2019).
Where the marks are identical, it is only necessary that there be a “viable relationship
between the goods” to support a finding of likelihood of confusion. L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012).
1. Comparison with the Goods Identified in the ‘310 Registration
Again, Applicant’s identified goods are “fertilizers; plant foods; chemicals for use
in agriculture, except fungicides, herbicides, insecticides, and parasiticides,” and
Registrant’s goods are “plant growth regulators for agricultural use.”
Applicant argues that the goods differ in function:
Fertilizers, plant foods and chemicals for use in agriculture, except
fungicides, herbicides, insecticides and parasiticides, generally entail
the singular function of improving plant growth, or, more
specifically, improving conditions of the plant environment, in particular
the soil, to promote plant growth. In contrast, plant growth regulators
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entail a wide range of specific and targeted functions, in each case
related to manipulating plant characteristics, such as, for example
improving seed emergence, plant vigor and function, and plant resilience
under harsh, early season conditions, as in the Advantigro product
information cited by the Examining Attorney in the Office Actions. As
demonstrated by this example, the functions of plant growth
regulators are more elaborate, complex and targeted than simply
promoting plant growth or improving soil conditions to promote plant
growth.5

Applicant’s and Registrant’s goods are legally identical in part. Applicant’s
broadly described “chemicals for use in agriculture” encompass all goods of the nature
and type described therein, including Registrant’s “plant growth regulators for
agricultural use.” A “chemical” is “a substance with a distinct molecular composition
that is produced or used in a chemical process.”6 Plant growth regulators are
“artificially synthetic agents used for promoting or inhibiting the germination, root,
differentiation, blossom, fructification, defoliation and other plant physiology
processes.”7 For example, the Helena plant growth regulator is advertised as “a
unique combination of three well known plant grown regulators — IBA, Gibberellic
Acid and Kinetin — blended into a solution of Carboxylic and Polyphenolic Acids.”8
Because “plant growth regulators for use in agriculture” are a subset of “chemicals
for use in agriculture,” the goods are legally identical. See In re Hughes Furniture
Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded

5 Applicant’s brief, 10 TTABVUE 6 (emphasis added).
6 AMERICAN HERITAGE DICTIONARY, AHDictionary.com, May 10, 2019 Office Action at 9.
7 Applicant’s brief, 10 TTABVUE 6, citing ChemicalBook.com, Oct. 19, 2018 Office Action at
39.
8 HelenaAgri.com, Dec. 5, 2019 Office Action at 31.
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identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified
‘residential and commercial furniture.’”); In re Yawata Iron & Steel Co., 403 F.2d 752,
159 USPQ 721, 722-23 (CCPA 1968) (applicant’s and registrant’s identified iron and
steel products legally identical).
Applicant points out that Registrant’s plant growth regulator is used to regulate
the growth of grass on golf courses: “—it doesn’t simply promote growth but, in this
case, promotes a specific pattern of growth such as growth that facilitates golf play
and efficient maintenance.”9 So “Registrant’s goods are directed at manipulating golf
course grass in order to beautify it and facilitate playing golf on it, all of which are
far afield from agriculture,” Applicant maintains.10
Registrant’s goods, however, are identified as “plant growth regulators for
agricultural use.” (Emphasis added.) Whether or not Applicant considers golf
course maintenance to be “agriculture” is not relevant; only Registrant’s
identification of goods is. Agriculture is “the science, art, and business of cultivating
soil, producing crops, and raising livestock; farming.”11 “The relevant inquiry in an ex
parte proceeding focuses on the goods and services described in the application and
registration, and not on real-world conditions.” In re Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018). As the Board observed in a similar
case:

9 Applicant’s brief, 10 TTABVUE 7.
10 Applicant’s brief, 10 TTABVUE 9.
11 AMERICAN HERITAGE DICTIONARY, AHDictionary.com, cited in Applicant’s brief, 10
TTABVUE 9 & n. 5.

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The problem with this argument is that applicant is attempting to restrict
the scope of its goods in its application and the scope of the goods covered
in the cited registration by extrinsic argument and evidence while neither
the recitation of goods in applicant’s application nor the recitation of goods
in the cited registration is so restricted. It is well settled that in a
proceeding such as this, the question of likelihood of confusion must be
determined by an analysis of the marks as applied to the goods identified
in the application vis-a-vis the goods recited in the registration, rather
than what extrinsic evidence shows those goods to be.

In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986). Applicant’s
“chemicals for use in agriculture” are thus legally identical to Registrant’s goods.
It is unnecessary for the Examining Attorney to demonstrate that all of the goods
in the application are related to those in the cited registration; it is sufficient if
Applicant’s mark for any of its identified goods is likely to cause confusion with the
Registrant’s mark for any of its identified goods. See SquirtCo v. Tomy Corp., 697
F.2d 1038, 216 USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good from
among several may sustain a finding of likelihood of confusion); Tuxedo Monopoly,
Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)
(likelihood of confusion must be found if there is likely to be confusion with respect to
any item that comes within the identification of goods or services in the application).
Nonetheless, Applicant’s remaining goods are related to Registrant’s goods, as
“fertilizers [and] plant foods” complement “plant growth regulators for agricultural
use.” As the Examining Attorney points out, a “fertilizer” is “[a]ny of a large number
of natural and synthetic materials, including manure and nitrogen, phosphorus, and
potassium compounds, spread on or worked into soil to increase its capacity to
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support plant growth.”12 Similarly, “[p]lant growth regulators have been developed to
improve crop production. Plant growth regulators are produced for a variety of
purposes, including loosening ripened fruits for faster harvest; controlling the size
and firmness of fruits; and regulating the size of a plant to increase branching.”13
The two can be used together. “If goods are complementary in nature, or used
together, this relatedness can support a finding of likelihood of confusion.” In re Cook
Medical Techs., LLC, 105 USPQ2d 1377, 1380 (TTAB 2012) (citing In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)
(“[C]omplementary use has long been recognized as a relevant consideration in
determining a likelihood of confusion.”)). For example, “When applied with liquid
fertilizers, [the Helena plant growth regulator] enhances root system development
and contributes to a stronger, faster growing plant.”14 So even if, as Applicant
suggests, plant growth regulators have a wider range of functions, “[a] farmer might
therefore seek to improve his crops by enriching the planted soil with fertilizer, while
simultaneously applying a plant growth regulator to further stimulate growth.”15
To illustrate the relatedness of the goods, the Examining Attorney adduces
evidence of the same entities offering fertilizers and plant food as well as plant growth
regulators. For example, Helena, mentioned earlier, offers:

12 AHDictionary.com, Oct. 19, 2018 Office Action TSDR at 48.
13 ScienceDirect.com, May 10, 2019 Office Action at 60.
14 HelenaAgri.com, Dec. 5, 2019 Office Action at 31.
15 Examining Attorney’s brief, 12 TTABVUE 11.
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16
And Westbridge offers:
17
Applicant submits that “the different headings illustrate how the industry views
each of these products as different types of goods. … [T]he fact that the different
functions of these products are prominently marketed indicates that consumers are

16 HelenaAgri.com Dec. 5, 2019 Office Action at 31.
17 Westbridge.com, Oct. 19, 2018 Office Action at 50.
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educated regarding their functions and therefore less likely to view the products as
so closely related that a likelihood of confusion follows.”18
The issue, however, is not whether the goods will be confused with each other, but
rather whether the public will be confused as to their source. Recot Inc. v. M.C.
Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“even if the goods in
question are different from, and thus not related to, one another in kind, the same
goods can be related in the mind of the consuming public as to the origin of the goods.
It is this sense of relatedness that matters in the likelihood of confusion analysis.”).
Given the complementary nature of the respective goods—with Applicant’s goods
promoting plant growth and Registrant’s goods regulating that growth—purchasers
could easily infer that the goods, marketed under the identical mark, emanate from
the same source.
2. Comparison with the Goods Identified in the ‘226 Registration
Here we compare Registrant’s “insecticides” with Applicant’s “fertilizers; plant
foods.” Applicant contends that its full identification of goods, “fertilizers; plant foods;
chemicals for use in agriculture, except fungicides, herbicides, insecticides and
parasiticides” expressly excludes insecticides and similar chemicals, so that any
potential similarity between the claimed goods is minimized.19
This exclusion, however, pertains only to “chemicals for use in agriculture.” It does
not extend to Applicant’s other identified goods, “fertilizers; plant foods;” as they are

18 Applicant’s brief, 10 TTABVUE 8, 12.
19 Applicant’s brief, 10 TTABVUE 13.
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set off by semicolons. Semicolons are used to separate distinct categories of identified
goods or services. See In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166
(TTAB 2013) (finding that, because a semicolon separated the two relevant clauses
in registrant’s identification, its ‘restaurant and bar services’ is a discrete category of
services that stands alone and independently as a basis for likelihood-of-confusion
analysis, and is not connected to nor dependent on the services set out on the other
side of the semicolon); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP)
§ 1402.01(a) (Oct. 2018). So it is proper to compare Applicant’s fertilizers and plant
foods with Registrant’s insecticides.
Applicant suggests that “insecticides, to the extent used in an agricultural context,
do not make plants grow, but rather are used to mitigate an external harm to a plant,”
thereby differentiating them from fertilizers and plant foods.20 But as we have stated,
“the test is not whether consumers would be likely to confuse these goods, but rather
whether they would be likely to be confused as to their source.” In re I-Coat Co., LLC,
126 USPQ2d 1730, 1737 (TTAB 2018). “It is not necessary that the … respective goods
… be competitive, or even that they move in the same channels of trade to support a
holding of likelihood of confusion. It is sufficient that the respective goods … are
related in some manner, or that the conditions and activities surrounding the
marketing of the goods … are such that they would or could be encountered by the
same persons under circumstances that could give rise to the mistaken belief that
they originate from the same source.” DeVivo v. Ortiz, 2020 USPQ2d 10153, * 11

20 Applicant’s brief, 10 TTABVUE 13.
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(TTAB 2020) (citing Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1722 (Fed. Cir. 2012)).
The Examining Attorney adduces evidence that fertilizers, plant food, and
insecticides provide related functions in promoting and protecting plant growth.21 As
one article explains, “Nutrients essential for plant growth are supplied by fertilizers,
and pesticides kill plants and animals which harm crops, helping boost production.”
These products are commonly marketed together by the same source. For example:
 Westbridge markets and sells “fertilizers for agriculture”, “turf and lawn
fertilizers”, “plant growth regulators”, and “biopesticides”, all under the
Westbridge brand name;22

 Wilbur-Ellis similarly markets and sells a wide variety of fertilizers, plant
nutrition products, and insecticides, all under the Wilbur-Ellis brand name;23

 Scotts offers lawn food and insecticide, as well as a product that combines plant
food with insect control;24

 BioAdvanced offers lawn and garden products combining fertilizer with insect
control;25

 Bonide provides lawn and garden fertilizer and insect control products, as well
as a product that kills insects, contains slow release fertilizer, and iron
nutrients; 26

21 A Look at Fertilizer and Pesticide Use in the US, Gro-Intelligence.com, June 11, 2018; see
also Combining Pesticides with Fertilizers, GrowerTalks.com, Dec. 5, 2019 Office Action at
36-47.
22 October 19, 2018 Office Action, TSDR at 50; Examining Attorney’s brief, 12 TTABVUE 10.
23 WilburEllis.com, May 10, 2019 Office Action at 19-26; Examining Attorney’s brief, 12
TTABVUE 10.
24 Oct. 19, 2018 Office Action at 22-38.
25 BioAdvanced.com, Amazon.com, May 10, 2019 Office Action at 11-14, 89-91.
26 Bonide.com, May 10, 2019 Office Action at 27-37.
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 Ortho provides a combination plant food and insect control product.27

As the Court of Appeals for the Federal Circuit has declared, evidence that “a
single company sells the goods and services of both parties, if presented, is relevant
to a relatedness analysis.” Hewlett-Packard Co. v. Packard Press, 62 USPQ2d at 1004.
See also In re Detroit Athletic, 128 USPQ2d at 1051 cited in Ricardo Media v.
Inventive Software, 219 USPQ2d 311355 at *3 (third-party evidence demonstrating
relatedness of goods); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB
2009).
Applicant’s “fertilizers; plant foods” are thus related to Registrant’s “insecticides,”
enhancing the likelihood that consumers encountering them under identical marks
would tend to believe that they emanate from the same source.
3. Comparison of Channels of Trade
The legally identical goods in this case (namely, the Application’s “chemicals for
use in agriculture, except fungicides, herbicides, insecticides and parasiticides” and
the ‘310 Registration’s “plant grown regulators for agricultural use”) are presumed to
travel in same channels of trade, such as agricultural supply stores, to the same class
of purchasers, primarily farmers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012); In re FabFitFun, Inc., 127 USPQ2d 1670, 1672-73 (TTAB 2018).
The otherwise related goods (namely, the Application’s “fertilizers; plant foods”
and the ‘226 Registration’s “insecticides”) would tend to flow through all channels of
trade normal for such goods, such as agricultural suppliers and home and garden

27 Amazon.com, HomeDepot.com, May 10, 2019 Office Action at 81-84, 98-102.
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stores, to all usual prospective purchasers for goods of that type: not only farmers,
but homeowners and gardeners, as the evidence above indicates. In re i.am.symbolic,
123 USPQ2d at 1750; In re I-Coat, 126 USPQ2d at 1737.
In sum, the respective goods are legally identical and otherwise related, and would
flow through the same or overlapping channels of trade to the same or overlapping
classes of customers. Accordingly, we find that the second and third DuPont factors
weigh in favor of finding a likelihood of confusion.
C. Purchasers’ Care and Sophistication

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues:
The Applicant’s goods are directed to consumers interested in the
agricultural field, for example farmers, plant researchers and other
agricultural specialists. These consumers may be described as professional
buyers, i.e., a person already knowledgeable about the goods. As such,
professional buyers typically make purchases of these goods thoughtfully
and carefully, as the quality and efficacy of the goods are important factors
relating to their livelihood. …
Similarly, purchasers of plant growth regulators are likely to be
professionals and therefore sophisticated and likely to exercise great care
in their purchases.28

The Examining Attorney counters that even sophisticated purchasers are not
immune from source confusion, and that the standard of care is that of the least
sophisticated potential purchaser.29 We agree.

28 Applicant’s brief, 10 TTABVUE 16-17.
29 Examining Attorney’s brief 12 TTABVUE 15-17.
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The “chemicals for use in agriculture, except fungicides, herbicides, insecticides
and parasiticides” and “plant grown regulators for agricultural use,” are by their very
nature, directed toward agricultural use: “the science, art, and business of cultivating
soil, producing crops, and raising livestock; farming.”30 Those goods would therefore
tend to be marketed to and purchased by professionals: farmers and the like. But
“being knowledgeable and/or sophisticated in a particular field does not necessarily
endow one with knowledge and sophistication in connection with the use of
trademarks.” In re Decombe, 9 USPQ2d 1812, 1814-15 (TTAB 1988) (citing In re
Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983)). Nor does it render one
immune from confusion. See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163-
64; Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011).
Given the identical nature of the marks, the legally identical nature of the goods,
which would travel through the same channels of trade to the same classes of
customers, “we are not convinced that even careful purchasers would avoid
confusion.” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1063
(TTAB 2017) (citing Weiss Assocs. v. HRL Assocs., 902 F.2d 1546, 14 USPQ2d 1840,
1841-42 (Fed. Cir. 1990)). “[W]ith identical or similar marks used on such goods, even
a careful, sophisticated consumer of these goods is likely to believe that the goods
emanate from a common source.” In re I-Coat, 126 USPQ2d at 1739 (citing

30 AMERICAN HERITAGE DICTIONARY, AHDictionary.com, cited in Applicant’s brief, 10
TTABVUE 9 & n. 5.

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Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000)).
The other goods, “fertilizers; plant foods” and “insecticides,” are not limited to
agricultural use, and would be marketed to and purchased by ordinary members of
the general public, such as homeowners and gardeners, as well as farmers. The
evidence of record shows such goods marketed at Home Depot and on Amazon.com,
at affordable prices, for lawn and garden care.31 Where the purchaser class is mixed,
the Board considers the likelihood of confusion from the perspective of the least
sophisticated potential purchasers. In re Information Builders Inc., 2020 USPQ2d
10444, *4 (TTAB 2020) (citing Stone Lion Capital Partners v. Lion Capital, 110
USPQ2d at 1163). These ordinary purchasers would have no reason to believe that
complementary products—fertilizers, plant foods, and insecticides—bearing the same
LEGACY brand actually came from different producers.
Consequently, we have no reason to find that purchasers would exercise more
than an ordinary degree of sophistication and care when purchasing Applicant’s
goods. This factor is neutral.
D. Fame/Strength of the Cited Registered Marks

The fifth DuPont factor is “[t]he fame of the prior mark (sales, advertising, length
of use).” DuPont, 177 USPQ at 567.
Based on its informal review of Registrants’ internet activity, Applicant states, “it
appears that only one product is in use under the first mark for plant growth

31 May 10, 2019 Office Action at 79-100, Examining Attorney’s brief, 12 TTABVUE 16.
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regulators and none under the second mark for insecticides. As such, the Registrants’
marks do not appear to be famous marks as neither has achieved a high standard of
extensive public recognition and renown.”32
As the Examining Attorney correctly observes, however, “[t]he registered marks
in this case need not be famous to support a likelihood of confusion, particularly in
light of the similarity of the marks, and the relatedness of the parties’ goods. …
Evidence that a prior registered mark is famous may increase the likelihood that it
will be confused with another, similar mark, however the absence of such evidence
does not retrench upon the registered mark’s scope of protection.”33
We agree. Evidence regarding fame of a registered mark is “not particularly
significant in the context of an ex parte proceeding. ... Moreover, it is not necessary
that a registered mark be famous to be entitled to protection against a confusingly
similar mark.” In re Davey Prods., 92 USPQ2d at 1204 (punctuation and citations
omitted). “While we agree that the record does not establish that the cited mark is
famous, the owner of the cited registration is not a party to this ex parte appeal, and
the Examining Attorney is under no obligation to demonstrate the fame of a cited
mark.” In re Integrated Embedded, 120 USPQ2d 1504, 1512 (TTAB 2016). All
registrations on the Principal Register are entitled to a presumption of validity. 15
U.S.C. § 1057(b), and an ex parte applicant will not be heard on matters that
constitute a collateral attack on cited registrations. In re Detroit Athletic, 128

32 Applicant’s brief, 10 TTABVUE 20 (citation omitted).
33 Examining Attorney’s brief, 12 TTABVUE 19-20.
Serial No. 88017333
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USPQ2d at 1053; In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34
(Fed. Cir. 1997).
So while proof of fame or market strength may support a finding of likelihood of
confusion, its absence in an ex parte setting does not detract from that conclusion.
This factor is therefore neutral.
E. Variety of Goods on Which the Registered Marks are Used

The ninth DuPont factor concerns “the variety of goods on which a mark is or is
not used....” DuPont, 177 USPQ at 567.
Applicant, echoing its “fame” arguments, contends that “A mark that covers a
broader variety of goods, for example as in a house mark, may be subject to a greater
likelihood of confusion and thus should be afforded greater trademark protection. As
discussed below, both Registrants’ marks cover only a limited variety of goods and
therefore should be afforded narrower protection on the grounds that a likelihood of
confusion is at most de minimis.”34
The Examining Attorney responds: “Marks used in connection with a large variety
of goods may be afforded greater protection than marks used in connection with a
comparatively small variety of goods, however the use of a mark in connection with a
small variety of goods—or even a single kind of goods—does not render that mark
unprotectable, or so ‘weak’ as to permit an applicant to register a confusingly similar
mark for use in connection with related and overlapping goods.”35

34 Applicant’s brief, 10 TTABVUE 19.
35 Examining Attorney’s brief, 12 TTABVUE 18.
Serial No. 88017333
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Again, we agree with the Examining Attorney. If a registrant uses its mark on a
wide variety of goods, then purchasers are more likely to view an applicant’s related
goods under a similar mark as an extension of the registrant’s line. See DeVivo v.
Ortiz, 2020 USPQ2d 10153 at *14-15 (citing In re Hitachi High-Technologies Corp.,
109 USPQ2d 1769, 1774 (TTAB 2014)). The opposite is not true, however. Even if a
registrant uses its mark on a single product, purchasers encountering related goods
under a similar mark are still likely to believe, mistakenly, that the goods originate
from the same source. DeVivo v. Ortiz, 2020 USPQ2d 10153 at *11. This especially
holds true here, where the goods are legally identical, complementary, and closely
related, and appear under identical marks.
This factor is therefore neutral.
II. Conclusion

On consideration of all the evidence and arguments, we find there is a likelihood
of confusion between Applicant’s LEGACY mark and both cited registered LEGACY
marks under Section 2(d).
Decision: The refusal to register Applicant’s mark is affirmed.